Layman v. Kijakazi
Filing
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ORDER GRANTING 9 PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER; denying 11 Defendant's motion to affirm. The Commissioner's final decision is REVERSED and this case is REMANDED for further proceedings under sentence four of 42 U.S.C. § 405(g). This file is CLOSED. Signed by Senior Judge Wm. Fremming Nielsen. (TNC, Case Administrator)
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Mar 26, 2024
2
SEAN F. MCAVOY, CLERK
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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BRANDY L.,
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No.
Plaintiff,
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-vs-
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MARTIN O'MALLEY,
Commissioner of
Social Security, 1
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1:23-CV-3078-WFN
ORDER GRANTING PLAINTIFF'S
MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER
Defendant.
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Pending before the Court are Plaintiff's Opening Brief and the Commissioner's Brief
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in response. ECF Nos. 9, 11. Attorney D. James Tree represents Brandy L. (Plaintiff);
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Special Assistant United States Attorney Frederick Fripps represents the Commissioner of
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Social Security (Defendant). After reviewing the administrative record and the briefs filed
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by the parties, the Court GRANTS Plaintiff's motion to reverse the decision of the
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Commissioner, DENIES Defendant's motion to affirm, and REMANDS the matter for
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further proceedings under sentence four of 42 U.S.C. § 405(g).
JURISDICTION
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Plaintiff filed applications for benefits on March 14, 2019, alleging disability since
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September 1, 2018. The applications were denied initially and upon reconsideration.
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Administrative Law Judge (ALJ) Roxanne Fuller held a hearing on October 5, 2020, and
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issued an unfavorable decision on November 20, 2020.
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the matter on August 12, 2021. ALJ Lynn Ginsberg held a second hearing on February 17,
The Appeals Council remanded
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1
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Commissioner of Social Security. Martin O'Malley is substituted as the defendant because
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he is now the Commissioner of Social Security. See Fed. R. Civ. P. 25(d).
This action was originally filed against Kilolo Kijakazi in her capacity as the acting
ORDER GRANTING
PLAINTIFF'S MOTION - 1
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2022, and issued an unfavorable decision on April 4, 2022. Tr. 15-31. The Appeals Council
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denied review on April 14, 2023. Tr. 1-6. Plaintiff appealed this final decision of the
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Commissioner on June 8, 2023. ECF No. 1.
STANDARD OF REVIEW
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The ALJ is responsible for determining credibility, resolving conflicts in medical
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testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
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1995). The ALJ's determinations of law are reviewed de novo, with deference to a
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reasonable interpretation of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087
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(9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by
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substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097
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(9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less
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than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson
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v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
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197, 229 (1938)). If the evidence is susceptible to more than one rational interpretation, the
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Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098; Morgan
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v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence
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supports the administrative findings, or if conflicting evidence supports a finding of either
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disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812
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F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial
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evidence will be set aside if the proper legal standards were not applied in weighing the
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evidence and making the decision. Brawner v. Sec'y of Health and Human Services, 839
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F.2d 432, 433 (9th Cir. 1988).
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SEQUENTIAL EVALUATION PROCESS
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The Commissioner has established a five-step sequential evaluation process for
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determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); Bowen v.
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Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the claimant bears the
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burden of establishing a prima facie case of disability. Tackett, 180 F.3d at 1098-1099. This
ORDER GRANTING
PLAINTIFF'S MOTION - 2
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burden is met once a claimant establishes that a physical or mental impairment prevents the
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claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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If a claimant cannot perform past relevant work, the ALJ proceeds to step five, and the
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burden shifts to the Commissioner to show (1) the claimant can make an adjustment to other
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work and (2) the claimant can perform other work that exists in significant numbers in the
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national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot
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make an adjustment to other work in the national economy, the claimant will be found
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disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
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ADMINISTRATIVE FINDINGS
On April 4, 2022, the ALJ issued a decision finding Plaintiff was not disabled as
defined in the Social Security Act. Tr. 15-31.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity
since March 12, 2019, the application date. Tr. 18.
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At step two, the ALJ determined Plaintiff had the following severe impairments:
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major depression; anxiety; post- traumatic stress disorder (PTSD); rule out borderline
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intellectual functioning; attention- deficit/hyperactivity disorder (ADHD); intermittent
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explosive disorder; headaches; chronic pelvic pain with endometriosis and bowel adhesions;
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and bilateral hand pain. Tr. 18.
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At step three, the ALJ found these impairments did not meet or equal the requirements
of a listed impairment. Tr. 19.
The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and determined
Plaintiff could perform light work subject to the following limitations:
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She can lift and/or carry up to twenty pounds occasionally and ten pound
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frequently; can stand and/or walk about six hours and sit about six hours in an
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eight-hour workday with normal breaks; never climb ladders, ropes, or scaffolds;
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frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; no use
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of moving hazardous machinery; no exposure to unprotected heights; can
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understand, remember, and carry out instructions that can be learned in up to and
ORDER GRANTING
PLAINTIFF'S MOTION - 3
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including 30 days of on the job training; can keep pace sufficient to complete tasks
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and meet quotas typically found in unskilled work, but cannot perform highly time
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pressured tasks and is limited to generally goal-oriented work and not work with
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strict production quotas; can have occasional interaction with supervisors; can
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work in proximity with co-workers but not in a cooperative or team effort;
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requires a work environment that has no more than superficial interaction with
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coworkers; requires a work environment that is predictable with only occasional
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changes in the work setting; and should have no public interaction.
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Tr. 21.
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At step four, the ALJ found Plaintiff has no past relevant work. Tr. 30.
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At step five, the ALJ found there are jobs that exist in significant numbers in the
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national economy that Plaintiff can perform. Tr. 30-31.
The ALJ thus concluded Plaintiff has not been disabled since the application date.
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Tr. 31.
ISSUES
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The question presented is whether substantial evidence supports the ALJ's decision
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denying benefits and, if so, whether that decision is based on proper legal standards.
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Plaintiff raises the following issues for review: (A) whether the ALJ properly
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evaluated the medical opinion evidence; and (B) whether the ALJ properly evaluated
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Plaintiff's subjective complaints. ECF No. 9 at 2.
DISCUSSION
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A.
Medical Opinions
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Under regulations applicable to this case, the ALJ is required to articulate the
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persuasiveness of each medical opinion, specifically with respect to whether the opinions
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are supported and consistent with the record. 20 C.F.R. § 416.920c(a)-(c). An ALJ's
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consistency and supportability findings must be supported by substantial evidence. See
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Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Plaintiff argues the ALJ misevaluated
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four sets of medical opinions. ECF No. 9 at 14-21. The Court addresses each in turn.
ORDER GRANTING
PLAINTIFF'S MOTION - 4
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1. Donna Lopaze, LMHC.
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LMHC Layman, Plaintiff's treating therapist, prepared three medical source
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statements. In the first, dated August 14, 2018, she opined Plaintiff would be limited to
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working, looking for work, or preparing for work 1-10 hours per week. Tr. 672. In the
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second, dated August 6, 2019, she endorsed the same limitation. Tr. 737. In the third, dated
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December 21, 2021, she opined, among other things, Plaintiff had a series of severe and
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marked functional limitations and, if attempting to sustain work, Plaintiff would be off task
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21-30% of the time and would miss 3 days per month. Tr. 876-78. The ALJ found these
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opinions not persuasive. Tr. 28.
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The ALJ first discounted the opinion as inconsistent with Plaintiff's "largely
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conservative and routine mental health treatment and lack of need for medication." Tr. 28.
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These are not reasonable inconsistencies. Indeed, no mental health professional endorsed
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additional psychiatric medication as a treatment option or suggested a more aggressive
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treatment plan was warranted. See, e.g., Tr. 736 (LMHC Layman recommending continuing
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"cognitive-behavioral therapy with a trauma focus"). The ALJ thus erred by discounting the
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opinion on this ground.
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The ALJ next discounted the opinions on the grounds Plaintiff "increase[d] her
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socialization at times, including going to a friend's house and attending her children's
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activities," and could "prepar[e] meals, driv[e] a car, go[] shopping, and successfully car[e]
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for her two children." Tr. 28, 29. Plaintiff's activities, however, are neither inconsistent
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with nor a valid reason to discount the opinions. See Diedrich v. Berryhill, 874 F.3d
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634, 643 (9th Cir. 2017) ("House chores, cooking simple meals, self-grooming, paying
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bills, writing checks, and caring for a cat in one's own home, as well as occasional
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shopping outside the home, are not similar to typical work responsibilities."); Vertigan v.
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Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ("This court has repeatedly asserted that
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the mere fact that a plaintiff has carried on certain daily activities, such as grocery
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shopping, driving a car, or limited walking for exercise, does not in any way detract
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from her credibility as to her overall disability.
ORDER GRANTING
PLAINTIFF'S MOTION - 5
One does not need to be ‘utterly
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incapacitated' in order to be disabled.") (quoting Fair v. Bowen, 885 F.2d 597, 603
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(9th Cir. 1989), superseded on other grounds by 20 C.F.R. § 404.1502(a)); Reddick v.
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Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("Several courts, including this one, have
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recognized that disability claimants should not be penalized for attempting to lead
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normal lives in the face of their limitations."); Cooper v. Bowen, 815 F.2d 557, 561 (9th
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Cir. 1987) (noting that a disability claimant need not "vegetate in a dark room" in order to
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be deemed eligible for benefits). The ALJ thus erred by discounting the opinions on this
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ground.
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Third, the ALJ discounted the opinions as overly reliant on Plaintiff's self-report
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of symptoms. Tr. 28. On this record, the ALJ erred by discounting the opinions on
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this ground. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) ("The report of a
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psychiatrist should not be rejected simply because of the relative imprecision of the
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psychiatric methodology.
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compared to evaluation in other medical fields. Diagnoses will always depend in part on
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the patient's self-report, as well as on the clinician's observations of the patient. But
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such is the nature of psychiatry. Thus, the rule allowing an ALJ to reject opinions based on
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self-reports does not apply in the same manner to opinions regarding mental illness.")
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(cleaned up); Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981) ("Courts have
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recognized that a psychiatric impairment is not as readily amenable to substantiation by
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objective laboratory testing as is a medical impairment and that consequently, the
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diagnostic techniques employed in the field of psychiatry may be somewhat less tangible
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than those in the field of medicine. In general, mental disorders cannot be ascertained and
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verified as are most physical illnesses, for the mind cannot be probed by mechanical devises
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in order to obtain objective clinical manifestations of mental illness."). The record indicates
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the opinions were based on clinical observations and does not indicate LMHC Lopaze
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found Plaintiff to be untruthful. Therefore, this is no evidentiary basis for rejecting her
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opinions. Cf. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1199–200 (9th Cir. 2008)
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(noting an ALJ does not validly reject a clinician's opinion "by questioning the credibility
ORDER GRANTING
PLAINTIFF'S MOTION - 6
Psychiatric evaluations may appear subjective, especially
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of the patient's complaints where the doctor does not discredit those complaints and supports
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his ultimate opinion with his own observations"). The ALJ thus erred by discounting the
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opinions on this ground.
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Fourth, the ALJ discounted the opinions as lacking "sufficient work-related functional
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limitations, supporting objective medical evidence and examination findings, and analysis
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and explanation." Tr. 28-29. This finding is both belied by the record and contrary to well-
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settled law, for three reasons. First, LMHC Lopaze's December 2021 medical source
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statement addresses the very functional limitations considered by Defendant's consultative
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and reviewing doctors. Compare, e.g., Tr. 878, with Tr. 716-17, and Tr. 214. Second, as
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discussed above, the lack of objective medical evidence concerning mental health
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impairments is not a reasonable ground on which to discount mental health-related opinions.
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See, e.g., Buck, 869 F.3d at 1049; Lebus, 526 F. Supp. at 60. And third, the opinions "did
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not stand alone[.]" Garrison v. Colvin, 759 F.3d 995, 1014 n17 (9th Cir. 2014). Rather, the
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opinions were supported by years of treatment notes. See, e.g., Tr. 759, 764, 893, 900. The
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ALJ thus erred by discounting the opinions on this ground.
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Fifth, the ALJ discounted the opinions as inconsistent with unelaborated medical
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evidence in the record "showing largely unremarkable examination findings, including,
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being alert and oriented, having an appropriate mood and affect, being cooperative, and
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being attentive." Tr. 29. In support, the ALJ cites medical records relating to Plaintiff's
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physical impairments and a consultative clinical examination. These are not reasonable
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inconsistencies. The medical records relating to Plaintiff's physical impairments neither
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undermine nor are reasonably related to LMHC Lopaze's assessment of Plaintiff's mental
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health impairments.
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conducted in a close and sterile setting with a psychiatric professional – is not reasonably
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inconsistent with LMHC Lopaze's opined limitations concerning Plaintiff's ability to, among
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other things, remain on task and maintain attendance. Cf. Reddick, 157 F.3d at 725 (rather
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than merely stating their conclusions, ALJs "must set forth [their] own interpretations
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and explain why they, rather than the doctors', are correct") (citing Embrey v. Bowen,
Further, Plaintiff's performance during the clinical interview –
ORDER GRANTING
PLAINTIFF'S MOTION - 7
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849 F.2d 418, 421-22 (9th Cir. 1988)). The ALJ thus erred by discounting the opinions on
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this ground.
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Finally, the ALJ discounted the opinion as internally inconsistent, reasoning as
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follows: "Ms. Lopaze notes that the claimant would need training and support for a
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successful job placement, but also assesses her with extreme limitations in adapting or
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managing herself, that she would be off task 21% - 30%, and would miss three days of work
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per month." Tr. 29. Contrary to the ALJ's finding, however, these assessments are neither
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incongruous nor mutually exclusive: LMHC Lopaze opined training and support could help
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Plaintiff, facing these limitations, reach her goal of a "successful job placement." Because
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the ALJ relied on an unreasonable inconsistency, the ALJ erred by discounting the opinions
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on this ground. Cf. Reddick, 157 F.3d at 722-23. (reversing ALJ's decision where its
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"paraphrasing of record material is not entirely accurate regarding the content or tone of the
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record").
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The ALJ accordingly erred by discounting these opinions.
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2. Thomas Genthe, Ph.D.
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Dr. Genthe examined Plaintiff twice, conducting clinical interviews and performing
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mental status examinations. Tr. 737-44, 828-835. On September 9, 2019, Dr. Genthe
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opined, among other things, Plaintiff was severely limited in communicating and performing
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effectively in a work setting, maintaining appropriate behavior in a work setting, and
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completing a normal workday and workweek without interruptions from psychologically
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based symptoms. Tr. 741. On December 29, 2020, Dr. Genthe endorsed these same
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limitations and assessed as "severe" the overall severity level of Plaintiff's mental
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impairments. Tr. 832. The ALJ found these opinions "generally not persuasive." Tr. 29.
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The ALJ first discounted the opinions on the ground Dr. Genthe performed "one-time
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examinations." Tr. 29. This ground is legally erroneous, as the Commissioner's regulations
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expressly allow for the evaluation of examining sources' opinions. See 20 C.F.R. §
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404.1520c(3)(v) ("Examining relationship.
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understanding of your impairment(s) if he or she examines you than if the medical source
ORDER GRANTING
PLAINTIFF'S MOTION - 8
A medical source may have a better
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only reviews evidence in your folder."). The ALJ thus erred by discounting the opinions on
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this ground.
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The ALJ next discounted the opinions as inconsistent with Plaintiff's ability to, on
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examination, be "oriented, cooperative, attentive, [and] ha[ve] normal speech and thought
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processes and content, mild concentration issues, and some memory limitations." Tr. 29.
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These are not reasonable inconsistencies.
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interview – conducted in a close and sterile setting with a psychiatric professional – is not
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reasonably inconsistent with the doctor's opined limitations concerning Plaintiff's ability to,
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among other things, complete a normal workday and workweek without interruptions from
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Plaintiff's performance during the clinical
psychologically based symptoms.
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The ALJ also discounted the opinions on identical grounds used to discount the
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opinions of LMHC Lopaze: "His findings are also not consistent with the evidence in the
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record, including the claimant's largely conservative and routine treatment, improvement
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with treatment, lack of need for psychiatric medication, normal to mild examination findings
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as discussed above, and her activities of daily living, including, caring for her children,
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performance of personal care, household chores, preparing meals, driving a car, and
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shopping." Tr. 29-30. For the reasons discussed above, the ALJ erred by discounting these
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opinions on those grounds.
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3. Karen Mansfield-Blair, Ph.D.
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Dr. Mansfield-Blair examined Plaintiff on June 22, 2019, conducting a clinical
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interview and performing a mental status examination. Tr. 711-17. Dr. Mansfield-Blair
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opined, among other things, Plaintiff "would not have difficulty maintaining regular
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attendance and completing a normal workday/work week without interruptions from a
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psychiatric condition[.]" Tr. 717. The ALJ found this opinion "generally persuasive." Tr.
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28. The ALJ credited Dr. Mansfield-Blair's opinion as consistent with the same evidence
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she found inconsistent with the opinions of LMHC Lopaze and Dr. Genthe. Because the
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ALJ erred by discounting the opinions on LMHC Lopaze and Dr. Genthe, the ALJ must
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reassess Dr. Mansfield-Blair's opinion on remand.
ORDER GRANTING
PLAINTIFF'S MOTION - 9
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4. DDS Consultants.
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Plaintiff contends the ALJ erroneously found these opinions the most persuasive.
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ECF No. 9 at 21. Although the ALJ was not required to provide reasons in support of
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incorporating a medical opinion into the residual functional capacity determination, see
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Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010), because the
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ALJ erred by discounting the opinions of LMHC Lopaze and Dr. Genthe, as discussed
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above, the ALJ must also reassess these opinions anew on remand.
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B.
Subjective Complaints
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Plaintiff contends the ALJ erred by not properly assessing Plaintiff's symptom
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complaints. ECF No. 9 at 3-14. Where, as here, the ALJ determines a claimant has
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presented objective medical evidence establishing underlying impairments that could cause
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the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only
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discount the claimant's testimony as to symptom severity by providing "specific, clear, and
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convincing" reasons supported by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664,
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678 (9th Cir. 2017). The Court concludes the ALJ failed to offer clear and convincing
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reasons to discount Plaintiff's testimony.
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The ALJ first discounted Plaintiff's testimony as inconsistent with the medical
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evidence, including Plaintiff's course of treatment. Tr. 23-26. However, because the ALJ
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erred by discounting the opinions of LMHC Lopaze and Dr. Genthe, and necessarily failed
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to properly evaluate the medical evidence, as discussed above, this is not a valid ground to
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discount Plaintiff's testimony.
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The ALJ also discounted Plaintiff's testimony as inconsistent with her activities,
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noting, among other minimal activities, Plaintiff was "able to prepare her own meals and
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feed herself" and "care for her hygiene needs." Tr. 23. As discussed in the context of LMHC
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Lopaze's opinion, Plaintiff's minimal activities neither "meet the threshold for transferable
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work skills," Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603),
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nor sufficiently undermine Plaintiff's allegations, see Diedrich, 874 F.3d at 643; Reddick,
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157 F.3d at 722. The ALJ thus erred by discounting Plaintiff's testimony on this ground.
ORDER GRANTING
PLAINTIFF'S MOTION - 10
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The ALJ accordingly erred by discounting Plaintiff's testimony.
CONCLUSION
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Having reviewed the record and the ALJ's findings, the Commissioner's final decision
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is REVERSED and this case is REMANDED for further proceedings under sentence four
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of 42 U.S.C. § 405(g). On remand, the ALJ shall reevaluate the medical opinions addressed
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herein, reassess Plaintiff's testimony, redetermine the RFC as needed, and proceed to the
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remaining steps as appropriate. Accordingly,
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IT IS ORDERED that:
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1. Plaintiff's motion to reverse, filed September 6, 2023, ECF No. 9, is GRANTED.
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2. Defendant's motion to affirm, filed October 13, 2023, ECF No. 11, is DENIED.
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The District Court Executive is directed to file this Order and provide a copy to
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counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall
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be CLOSED.
DATED this 26th day of March, 2024.
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03-07-24
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ORDER GRANTING
PLAINTIFF'S MOTION - 11
WM. FREMMING NIELSEN
SENIOR UNITED STATES DISTRICT JUDGE
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